Spend any amount of time reading or talking about copyright and you’re bound to have come across a debate over infringement and theft. Like many internet debates, it is very much a dead horse that has been beaten — I personally have written not one but two posts on the topic — yet the subject never dies.

Case in point: a couple weeks ago, Ben Jones at TorrentFreak resurrected the debate in an article called Copyright Infringement and Theft – The Difference. In it, Jones says, “A common recurring theme in the comments here on TorrentFreak is that P2P file-sharing is ‘stealing’. While such sentiments are often expressed by the industry lobby groups, it’s completely at odds with the law. It could also be the very LAST thing those bodies want.”

In the article, Jones makes the argument that since copyright infringement is enforced in courts through infringement claims rather than theft claims, it is wrong to ever use theft-type language to describe the harm caused by infringement. While this is not the only argument used by the “infringement is not theft” crowd, it is one of the more common ones.

It is also semantic nonsense.

At the risk of belaboring this point, here are five reasons why this argument fails.

#1. It’s based on an imaginary rule

According to the argument advanced in the TorrentFreak article, it’s wrong to call copyright infringement theft because it isn’t prosecuted under theft statutes.

This argument implies a rule: you’re only allowed to use words in their formal, legal manner. Throw away your Merriam-Webster’s, because the Blacks Law Dictionary is the only proper source for learning the meaning of a word.

Even the strictest language prescriptivist would cringe at the thought of such a rule. Many words have different meanings in different contexts — a certain definition in one context doesn’t preclude other definitions in other contexts.

#2. It assumes there’s only one legal definition for theft

If we accept this arbitrary, made-up rule, we still run into problems. Which legal definition of “theft” do we use? Every jurisdiction has its own specific definition; in the US, that means there is a different definition in each state.

Some states don’t call it “theft” at all. In West Virginia, for example, the criminal deprivation of personal property is prosecuted as either grand or petit larceny, depending on the value of the property. 1W.Va.Code § 61-3-13. Cries of “Larceny isn’t theft!” would be the nonsensical result of this argument. Stealing is stealing no matter what a lawyer is required to call it for pleading purposes.

#3. The same argument doesn’t make sense with other words

Suppose, for the sake of argument, that we can get around the previous two objections: it’s a settled rule that we should only use words in their formal, legal sense, and we can agree on a legal definition for “theft.” We still run into absurd results under this argument.

“Theft” is commonly used to describe the criminal offense of depriving someone of personal property. But in most jurisdictions, someone can sue for a wrongful deprivation in civil court rather than pressing charges. Such a claim would be for conversion — the “unauthorized dominion over personal property in interference with a plaintiff’s legal title or superior right of possession” 2LoPresti v. Terwilliger, 126 F.3d 34, 41 (2nd Cir. 1997).. It’s entirely accurate, then, to say that “conversion isn’t theft”, but so what? The nature of the act itself doesn’t change depending on which court the claim is brought in.

#4. Stealing or theft?

The crux of the argument advanced in the TorrentFreak article is that infringement isn’t theft, but it kicks off with an example of a comment that “P2P file-sharing is ‘stealing'”. So which is it? Even if this particular argument was valid, does that mean it extends to the characterization of infringement as stealing? Stealing isn’t a legal term, after all — though it should be noted that, in the US, criminal copyright infringement is codified under the heading “Stolen Property“.

This little switch-a-roo just highlights the semantic shenanigans involved in the “infringement isn’t theft” argument.

#5. Some pretty smart people disagree

The argument that calling copyright infringement “theft” is “completely at odds with the law” takes on a patronizing air — i.e., “you’re only calling it theft because you don’t understand the law as well as we do.” This is no more than hubris, however; many people whose job it is to know the law know better.

Perhaps TorrentFreak and the rest of the “infringement isn’t theft” crowd knows more about the law than Supreme Court Justices, federal court judges, and Congress, but I’m willing to bet that that’s not the case.

Copyright infringement is theft

Language is incredibly malleable; we use words in a variety of ways. Many people over the centuries have described the deprivation of the exclusive rights in the fruits of their creative endeavors as “theft”, there’s no question about that.

But I think it is fair to ask why some bristle at any mention of theft in connection with infringement and piracy. I highly doubt their motives are solely to increase legal literacy by ensuring that words are used in their exact legal sense — mistakenly, in this case, as shown above. After all, one doesn’t have to look very far to see losing civil defendants being described as having been found “guilty”, or statutory damages for infringement being described as “fines” by these same critics — both terms that aren’t accurate in their strictly legal sense.

It’s my sense that this linguistic peeving is explained by the fact that “theft” has definite moral overtones to it, while “infringement” is still capable of euphemistically avoiding any moral concerns. Perhaps proponents of this argument hope that by straining semantics, they don’t have to confront the very real harm that infringement causes to creators and the public.

In other words, the “infringement isn’t theft” argument is often just cover for some other point.

For example, Harper & Row Publishers v. Nation Enterprises, 471 US 539, 558 (1985) (citing Iowa State University Research Foundation v. American Broadcasting Cos., 621 F.2d 57, 61 (2nd Cir. 1980): “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance” ; Teleprompter Corp. v. Columbia Broadcasting System, 415 US 394, 417 (1974) (J. Blackmun, dissent in part): “A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft”; Dun v. Lumberman’s Credit Assn, 209 US 20,22 (1908): “[a] number of instances are disclosed in the evidence which have strong tendency to establish the charge that defendants have used some of complainants’ copyright material in making their book … such indicia is held to indicate a substantial theft of copyright property.”

40 Comments

It’s my sense that this linguistic peeving is explained by the fact that “theft” has definite moral overtones to it, while “infringement” is still capable of euphemistically avoiding any moral concerns. Perhaps proponents of this argument hope that by straining semantics, they don’t have to confront the very real harm that infringement causes to creators and the public.

In other words, the “infringement isn’t theft” argument is often just cover for some other point.

So true. They think that since a copy doesn’t take anything physical from the person they’re copying from, it’s not theft or stealing. This is true if you define those terms in certain ways, but it’s obviously glossing over the fact that they took something they had no right to take and they violated someone’s rights in doing so. Whether it’s theft, stealing, infringement, or whatever you want to call it, it’s still wrong.

Of course, if one happened to grow up in Poland (or any other place that gets plenty of snow), is of the male persuasion and happened to be – I don’t know… thirteen – at some point in his life, he will be perfectly aware that one can pack a snowball pretty tight – up to the point where it becomes more of an iceball. One could take somebody’s eye out with care and a direct hit to the less well padded areas can leave a nasty bruise.

In other words, as far as morality – that is: being generally mindful of other people – goes, our best way of knowing whether someone felt hurt is to ask them. Telling them they haven’t been harmed if they have isn’t really helping matters much.

Tomatoe..toe-ma-to…Their is no difference between the two..Infringement is simply a polite, legal term used to define the theft of one’s intellectual property. Over the last 20 years, according to an article by Attorney Steven T. Lowe, the major networks and studios have been alleged to have stolen/infringed upon the copyrights of 48 pieces of works, worth millions, and has NEVER LOST IN A 20 YEAR PERIOD (in Ny & CA); AND 46/48 of those times, they never had to even defend these allegations; the cases were thrown out of court on what we have chronicled as an unethical violation of the Seventh Amendment right to an unbiased jury trial. Our Trailer documenting How Hollywood, allegedly, steals, in the name of the law is listed below.http://www.youtube.com/watch?v=AKGrZfozHE4

COPYRIGHT INFRINGEMENT=THEFT…INJUSTICE FOR ALL…SUMMARY MISJUDGMENT COMING SOON TO A THEATRE NEAR YOU!

All just justification, so these thieves can sleep better at night.
No one likes to think that their actions are causing someone else harm (at least people who have a conscience)
People like living in denial. That way they don’t have to face the truth, or their own actions. Reminds me of a six year old kid, with fingers plugging the ears, saying “La lalala la lala la la” …

@James_J The major networks, studios etc. really don’t care..they have a monopoly on this business solely because one artist did not know how pervasive their actions were…NOW WE DO… Check out our trailer..we will continue to fight for our right to a jury trial in each of our cases. Tell the families of these 5 artists who have lost, collectively, billions, that copyright infringement isn’t theft! http://www.youtube.com/watch?v=AKGrZfozHE4

Conversion is a criminal charge in my neck o’ the woods. (it’s a small-timer’s version of embezzlement, reserved for people that take pens home from work by the carton, rather than one at a time, like good Christians) The law also differentiates among robbery, burglary, shoplifting and larceny, all of which may properly be described as theft. (and further ‘aggravated’ by other circumstances, such as being armed in the commission of same) There’s more than semantics going on here, though. A copyright denier will say, “I haven’t deprived you of the thing I took without compensation nor permission.”, but the thing you took isn’t the file, it’s my human right to benefit from my labor. If you take food outta my kids’ mouths, it’s stealing by any name.

@MOJO BONE…WELL SAID! The major studios/networks/record labels have gotten away with this crap for too long…We are fighting for our creative rights and for our money! If someone walks into McDonalds and, allegedly, takes 80 billion dollars, they call it theft. But when the creator of Sponge Bob allegedly took Bob Spongee and deprived Troy Walker and his family of any portion of 80 billion it’s not theft? Let’s be for real people…stealing is stealing…and these crooks must be subjected to the same JAIL CELLS we would be if we walked into McDonalds and took 80 billion…However, if the big boys know that they can, allegedly, steal IN THE NAME OF THE LAW (SUMMARY JUDGMENT) ….WHY NOT? Well, here is WHY NOT..WHAT IS DONE IN THE DARK…WILL COME TO LIGHT!http://www.youtube.com/watch?v=AKGrZfozHE4

@Mojo — I was about to agree with your argument, but I think you took a wrong turn in your last couple of sentences.

The major argument from the other side, as you point out, is that unauthorized copying doesn’t take away anything from the copyright owner because the supply of copies is infinite. In the West Virginia sense, there is no deprivation of property.

These folks argue that just because someone makes a free copy, that doesn’t mean that a sale has been lost. In their mind, the world is divided into the folks who wouldn’t bother to consume content if they had to pay for it (the pure infringers), those who won’t pay for content unless they know it’s good (the samplers) and those who’ll pay for it with no need to see or hear it first (the fans). The infringers, in this view, aren’t taking food out of anybody’s mouths because — and this is the key point — they weren’t going to pay for that content anyway. If they couldn’t copy it for free, they wouldn’t bother. The samplers, meanwhile, may wind up spending less or more, depending on how much more they’re induced to consume because they can try something out before buying.

It’s interesting to note that when Radiohead let people download “In Rainbows” from the band’s website for as little as they pleased — including paying nothing at all — more people *still* downloaded the album through file-sharing networks. That supports the notion that the file-sharing world acts like a parallel universe, attracting a set of people who simply won’t engage in legitimate commerce.

The Radiohead example might best be explained by the notion of “preferred venue”. The people who acquired the album from file-bartering sites were, in all likelihood, already users of those services and since the album was (effectively) made available for free anyway, why not get it where we always get stuff, eh?

The argument about infringement not necessarily equalling a lost sale is spurious. The key issue is that many (maybe most) infringements are lost sales. To deny this is to claim that price isn’t a factor in choosing suppliers – an argument that is best defined as “bollocks”. It is my guess that the majority of downloads in excess of lost sales are due to budgetary constraints (the downloader downloading more music than he could afford to buy) rather than disinterest in content – even content you’d have to pay for. It seems highly unlikely that people with little or no interest in copyrighted works would go to the trouble of infringing on a massive scale.

While it has to be said that the “infringer mentality” has taken a strong hold on the collective mind of the “digital natives”, it would be foolish to expect it to be anything more than a product of circumstances. They want stuff for free because they can get it for free. They will kick and scream at any suggestion they might not get stuff for free anymore. However, if they can no longer get stuff for free, most of them will pay for it, because wanting free stuff starts with wanting stuff.

Of course, this should be read as arguing against the arguments you have presented not against your own position which I agree with.

“Copyright” is one of those portmanteau words, it’s two words in one, yes? What I’m trying to point out is that it’s the back half of the word that goes missing when someone infringes, not the front.The infringer may take something that has no value to him, yet it has value for me. In matters of physical property, this the point at which I load my shotgun, or perhaps exercise my right to swing my fist.

While I agree that there is a lot of insincerity and self interest in many of the attempts to separate theft from infringement, I think the argument is far from settled, nor should it be.

The problem comes down to how you define intellectual property as ‘property’ and I can’t see this being settled any time soon because intellectual property isn’t real or personal property as we know it but it shares many characteristics with tangible property. Unfortunately, the debate seems to be on one side or the other when really, we need to acknowledge that it is both different to tangible property and that this doesn’t make it not property at all.

Furthermore, like there is a spectrum in the morality of appropriation of other people’s real property, so too is there one in copyright infringement. Is taking a pen from your employer theft? Some would say yes, many would say no. Perhaps morally it would be (or not) but if one was to report that to the police, they would tell you to go away and get a life.

The spectrum of not theft to theft is further complicated by the intangible nature of IP, in that not only can infringement not deprive the owner of any monetary value, it can ultimately create more benefit.

Added to this is the wide variety how jurisdictions interpret infringement that you don’t see in theft. Even with the spectrum mentioned earlier, what is theft is usually clearer to determine. Is a school child who has copied a photo from a newspaper for an assignment a thief? In countries without fair use provisions or fair dealing exceptions, under the infringement=theft model, she would be. In other countries, she wouldn’t be. Is photocopying books for personal use theft? Again that depends on the laws of your country and what you’re doing it for.

Sure some judges might hold that particular instances of infringement = theft, that doesn’t mean that all instances of infringement should be viewed legally or morally as theft.

Balance is good. Going too far in either direction hurts creators and hurts the public.

I agree with Terry that it is reasonable, in ordinary English usage, to describe copyright infringement as theft, but as I have argued before, I think it is tactically counterproductive.

The question to what extent copyright infringement involves lost sales is difficult. The recent Hargreaves review of copyright in the UK noted that a lot of the research on the subject is poor. In common sense, at least *some* illegally copied content must be a substitute for sales, but whether it is a large proportion is doubtful. A lot of people simply couldn’t afford to pay for a large proportion of what they get for free.

A question I think both defenders and opponents of copyright ought to address more often is why, given that most content (music and films, at least) is available for free, substantial quantities of it are still paid for. If we knew the answer to this question, we might have a better grasp of how to reduce infringement, by reinforcing those factors, whatever they may be, that lead some people to still pay for content.

I don’t recall any systematic attempt to answer the question, but off the top of my head the following possible factors come to mind:

– superiority of the physical product. A lot of people still buy CDs and DVDs because they think they have better quality or durability than a download. Personally, I am content with a (legal) download for something I am not hugely keen on, but I prefer a CD or DVD for something – like an album by a favourite singer – that I expect to be a permanent and important part of my collection.

– ignorance of how much material is available ‘free’, or of how to get it. This is probably age-related: people over the age of (roughly) 30 have not grown up with illegal downloads. If this is a major factor, it bodes ill for the future of the content industries, because the ‘ignorant’ part of the population will be steadily eroded.

– lack of technical facilities or know-how. At the most basic level, there are still people who are not connected to the internet, or who do not have broadband, etc. At a more advanced level, it is possible to stream films, etc, to view on a TV screen (not a computer screen), but not everyone has the necessary equipment. I don’t.

– inconvenience or unreliability of illegal options. I don’t have much practical knowledge of this, but if links are broken, etc, or sites are difficult to use, people may prefer the quick and reliable option of iTunes or Amazon. I have occasionally tried converting YouTube videos to MP3s (when I really wanted something that wasn’t currently available in any other way), but found the sites that claim to do this very unreliable.

– fear of the law. Most people are aware that copyright infringement potentially carries legal costs and penalties, and they may prefer not to run the risk. Again, there are demographic factors such as age and social class: a 50-year-old doctor is less likely to risk legal penalties than a 15-year-old boy. (For comparison, in the UK a lot of people grumble about paying the compulsory TV license fee, which funds the BBC, but about 90% of TV owners still pay up, because they know that the license fee is seriously enforced.)

– respect for the law (as distinct from fear of it). Believed to be rare but not extinct.

– respect for the artist. Real admirers of an artist will presumably be reluctant to rip them off.

– fear of malware, viruses, spyware, etc, from illegal sites. I don’t know how important this is, but it must deter at least some people. An illegal site is almost by definition run by untrustworthy people.

That’s all I can think of at the moment, but I’d be interested in any other ideas.

This is ridiculous. You don’t like the meaning of a word, so you try to redefine it by saying it’s the “legal” definition?

Uh, it’s the ACTUAL definition. If I steal something from you, I deny you access to it. There is only one instance of it and I have taken it.

What this is is copying, and sharing. Same as putting a book in the library and letting whoever wants it take it. The sooner you old timers and your outdated business models understand that there’s no putting the genie back in the bottle, the sooner you can get on to finding a business model that works with technology rather than trying to fight it.

I understad your point, but I think your analogy is flawed. File sharing is actually like taking a book from the library and making multiple Xeroxes of it so that each of your friends can own a copy without paying for it.

Geez, James. Maybe instead of so much copying and sharing, you should work on your reading comprehension. You know, old-timey copying where you store stuff in your mind. (to paraphrase Bart Simpson: “I closed my eyes and all the answers were there in my head, it was like a whole new kind of cheating!”) Every single sentence of your post is a distortion of what’s being said in the article. One of the major points is that solely using the legal definition is a terrible way to interpret the meaning of a word.

I suppose identity theft isn’t a big deal either? And we should change the terminology of it, right? After all, if I use your identity to my own ends, I’m not denying you access to it. Hell, give me your Visa card code and the security info too, because me using your credit doesn’t stop you from also using your credit. And don’t talk to me about having to pay it back in the future; that’s *potential* future income you’ll lose. You have no right to shape or invoke the law based on potential, imagined losses. There are no valid studies which prove that credit card debt will affect your future economic value, nor is there proof that personal credit encourages investment in oneself. Sure some (many) people who declare bankruptcy lose their livelihoods, but correlation is not causation. Anyone who tells you that bad credit will affect your ability to purchase a car or a home is obviously a shill for Big Credit. Credit card companies may not even exist in the future! Money might be obsoleted! ::roll eyes::

Fighting technology? I have to say, the free ride crowd always astounds me with their willful blindness. This is a blog… on the internet! It’s ad-supported and free to read! Is that not working “with technology” to you? I make music–with computers!–and I can give it away to fans while still licensing it for commercial use because of copyright protections. Am I a technophobe, too?

Also, speaking of “sharing”, you do know that there is an implied physical component to the concept, right? The earliest and still valid definition from 1590 (and you seem to think that the meaning of a word is never relative) is “to divide one’s own and give part to others.” By your logic, if something infinitely copyable at a near-zero margin can’t be stolen because it’s not a tangible loss, then it can’t be shared either.

You know what really sounds like the views of an “old timer” and “outdated”? Your tired arguments. Can’t the free riders come up with some new, original arguments? Some of the free ride pundits are still trotting out the old “buggy whip” argument!

To further the argument, it’s also true that most jurisdictions refer to the civil equivalent of theft as the tort of “conversion.” If someone steals my property, I can sue for “conversion” but not for “theft.” However, the fact is that the thief stole my property.

Unless you have “personally had your work stolen, you may not fully understand copyright theft with respect to copyright infringement.”

First of all, when someone knowingly takes another person’s work, “intellectual property,” without the person’s consent or knowledge and passes it off as their own work … it is THEFT! In that respect, intellectual property is no different than any other physical property once it has been “put into a tangible form.” It instantly becomes protected under the copyright laws of the U.S. Notwithstanding, once a person’s intellectual property is illegally sold across state lines (just as guns or other goods) it becomes a federal offense and is in violation of the “RICO ACT” and fall under racketeering. The premise here is that, “one is selling STOLEN goods across state lines. This fact should put ANY NOTION regarding copyright infringement being a theft to rest.

I don’t think that there is a person alive who has lived in the belly of the copyright infringement beast in the American Judicail System (as a non lawyer) as I have. (See Hudson v. Eddie Murphy, Universal Studios et. al, over the copyrights for the hit movie, LIFE, starring Eddie Murphy and Martin Lawrence.

Also, I am one of the featured artists, in Carla B. Boone’s Documentary Film, “Injustice For All: Summary MisJudgment.”

Copyright is a human right (the human right to annul all others’ human right to copy one’s works).
Infringement is theft.
Infringement is a crime.
Corporations are human beings.
Human rights are alienable and can be transferred between human beings (aka corporations).
Monopolies are more important than human rights (if you don’t recognise that monopolies are human rights).
Published works remain private property (until copyright expires – if ever).

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Copyright and patent laws are the means by which this human right is generally implemented. Anyone who proposes to abolish copyright should have the decency to suggest a viable alternative. (And please, Crosbie, don’t just suggest your ‘advance order’ scheme, which would fall woefully short of the generality of Article 27.)

No doubt your forebears would have demanded that anyone who proposed abolishing slavery should have the decency to suggest a viable alternative (with the proviso that exchanging work for money in a free market was not one of those suggestions).

If a free market is untenable, then a state granted monopoly is a foregone conclusion. QED Copyright is a human right.

And you would know what a watertight argument is, wouldn’t you? BTW, when are you going to explain how your world-shaking ideas for ‘advance order patronage’ differ from existing schemes like Pledge Music?

This is a stupid discussion because the ethics of this and the debate are irrelevant. People are still going to download stuff, the question should be not “is it stealing or not?”, but “who cares what it is, where do we go from here?”

The subject wont ever die until you stop erroneously calling infringement theft. Forget all those straw men arguments you make. I have over 5TB of movies and music I’ve collected. Half of it I’ve never watched, and probably never will (Yeah, I download them for the hell of it. Go figure) ; some of it duplicates my DVD collection because it is so much more convienient that way; and much of it from far off places such as Britian, Australia, New Zealand, and South Africa, which I never would have known about otherwise.

While I will not deny that some title I may have gone out and purchased or rented had the torrent sites not existed, this in fact accounts for a tiny fraction of what I have amassed.

With theft, I think we can all agree that someone is denied something that belongs to them or they have a right to. While you can make a valid comparison between copyright infringement and theft in the cases where the infringer would have purchased the product had the infringing copy not been available, that comparison is not valid in all other cases. The best comparison you can make in all other cases would be to trespass. Would you say my trespassing on your property is the equivalent of theft? I doubt it.

Every act of theft is obviously an act of theft, while every act of copyright infringement is not an act of theft. I suspect that even the majority of them would not be. Therefore it is totally inappropriate to call copyright infringement theft when that comparison is only valid in a small number of cases.

“I was never going to buy it in the first place” isn’t a defense to theft — try telling the transit police when they catch you for jumping the turnstile that you weren’t going to buy a subway ticket anyway and see how far it gets you. I doubt the looters in London last summer were only grabbing things they would have otherwise bought had the breakdown in law not afforded “easier and cheaper access.”

And copyright infringement does deny something that belongs to the copyright holder. Copyright includes the exclusive right to reproduce — infringement denies that exclusive right, just as garden-variety theft denies the exclusive right to possess.

You are confusing an ability with a right. It’s hard to believe you don’t know the difference between these two simple concepts so the only logical conclusion is that you’re being purposefully disingenuous in order to push your parasite agenda.

There is no “right”, natural or otherwise, to copy (pirate) the latest books, video games, movies, and music. Such a right simply does not exist. It isn’t codified anywhere. It’s 100% bullshit that you 100% derived from your ass.

Your arguments are laughable. Your religion will never gain traction. You will never be known outside an infinitesimal circle of pseudo-intellectual freetards. No one cares about your broken-record dogmatic proclamations that fly in the face of reality and reason.

Technotopia, if you’re interested to ‘get this shit’ I recommend reading a bit of Thomas Paine, someone who understood the rights of the matter – before ‘right’ became corrupted to mean a privilege granted by the crown.

See Wikipedia’s entry for Paine’s Rights of Man which should make it clear to you that the right to copy existed in man (and still does) despite Queen Anne’s statute of 1709 that annulled it, to leave it, by exclusion, in the hands of a few – privileged copyright holders.

“It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth … the country will deprive itself of the honour and service of letters and the improvement of science, unless sufficient laws are made to prevent depredations on literary property.”

Are you suggesting that laws against theft of literary property (and other violations of an author’s exclusive right to their writings), and laws against depredations, such as would be contrary to what are today termed moral rights, are somehow Paine’s way of justifying the privilege of a reproduction monopoly, that printers may handsomely profit thereof?

It is only modern authors in receipt of copyright who consider this monopoly their property. The monopoly is not the author’s literary work, so how can the author claim the suspended liberty of the majority to be their literary property?

Do not confuse the modern term ‘intellectual property’ (used to encompass monopolies of patent and copyright), with Paine’s use of ‘literary property’ to describe the natural relationship of an author’s work to the author.

Find a quote from Paine that endorses the Statute of Anne or similarly argues that people should not have the right to make copies of published works, that this right should, by exclusion, be left in the hands of a few.

Are you suggesting that laws against theft of literary property (and other violations of an author’s exclusive right to their writings), and laws against depredations, such as would be contrary to what are today termed moral rights, are somehow Paine’s way of justifying the privilege of a reproduction monopoly, that printers may handsomely profit thereof?

That’s exactly what I’m suggesting. See Patry: “With the Connecticut statute as precedent, efforts began to get the other colonies to enact similar laws. Joel Barlow played an important role in this effort… Others involved were Jeremy Belknap, a founder of the Massachusetts Historical Society, and Thomas Paine, who is said to have ‘counted copyright agitation among his many other revolutionary interests.’ Paine is unique in the annals of copyright due to his participation also as a member of the French legislature that passed that country’s 1793 Copyright Act.”

The 1793 French copyright act provides that “Authors of writings of any kind, composers of music, painters and draughtsmen who shall cause paintings and drawings to be engraved, shall throughout their entire life enjoy the exclusive right to sell, authorize for sale and distribute their works in the territory of the Republic, and to transfer that property in full or in part” and that “Officers of the peace shall be required to confiscate and requisition for the benefit of the authors, composers, painters, draughtsmen and others concerned, and of their heirs or transferees, all copies of publications which have been printed or engraved without the formal written permission of their authors.”

It is only modern authors in receipt of copyright who consider this monopoly their property. The monopoly is not the author’s literary work, so how can the author claim the suspended liberty of the majority to be their literary property?

That’s entirely incorrect. The notion of copyright — an exclusive right to make copies in a literary work — was well established by the middle of the 18th century. See Blackstone: “[W]hatever method be taken of conveying that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given.”

See also the colonial copyright acts, which plainly speak of a property right in copies of literary works, for example:

Massachusetts Copyright Statute (1783): “An act for securing to authors the exclusive right and benefit of publishing their literary productions, for twenty-one years… As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind… Therefore… all books, treatises, and other literary works… shall be the sole property of the said author.”

Virginia Copyright Statute (1785): “An act for securing to the authors of literary works an exclusive property therein for a limited time… The author of any book or pamphlet… shall have the exclusive right of printing and re-printing such book or pamphlet.”

Or this, from the first US treatise on copyright law (by George Ticknor Curtis, 1847): “The right to multiply copies of what is written or printed, and to take therefor whatever other possession mankind are willing to give in exchange, constitutes the whole claim of literary property.”

Do not confuse the modern term ‘intellectual property’ (used to encompass monopolies of patent and copyright), with Paine’s use of ‘literary property’ to describe the natural relationship of an author’s work to the author.

Find a quote from Paine that endorses the Statute of Anne or similarly argues that people should not have the right to make copies of published works, that this right should, by exclusion, be left in the hands of a few.

From Rights of Man: “On these principles I published the pamphlet Common Sense. The success it met with was beyond anything since the invention of printing. I gave the copyright to every state in the union, and the demand ran to not less than one hundred thousand copies.”

It would be odd indeed for someone who doesn’t believe “people should not have the right to make copies of published works” to make note of the fact that he has donated the right to make copies of his published work to the states.

You’re certainly entitled to your own opinions, but not your own facts. Quite frankly, I don’t know where you get your facts from — the history of the development of the ideas of literary property and copyright in the UK and US is well documented in numerous books, treatises, articles, and documents. If it’s your contention that everything published on these subjects in the past 200+ years is wrong and you’re right, then good luck.

It is unfortunate that Paine’s understanding of natural rights is at odds with his proximity to copyright legislation.

Even so, ‘giving the copyright’ is a categorically different statement to ‘giving the right to make copies’. Even I must give you the copyright, or a license (implicit or not), to the comments I submit to you – whether I like it or not. A privilege can be given, sold, or licensed. A right cannot.

For those who consider unauthorized copying “theft” – do you then consider all instances of fair use to be a form of theft? Do you consider the very existence of the public domain to be a form of theft? If not, why not?

If you merely argue that it isn’t “theft” because that is what the current law allows for, then this is a meaningless argument over semantics. But if you believe it is “theft” because unauthorized copying violates inherent universal principles relating to an author’s “rights” in an inherent moral sense, then I don’t see how you can justify the existence of either fair use or the public domain, unless you condone “petty” theft (in the case of fair use) or the theft of a family’s house merely because they have owned the same house for over two generations (life + 70 years), etc.

This discussion also sidesteps the challenges that libraries have posed to your argument. Have such institutions been a den of thieves all along?

Freeing a slave in 19th-Century America was not “theft” even though large segments of society defined them as “property”. If you have a flawed definition of “property” to begin with as a premise, then you can make any ridiculous conclusion seem logical. The same dynamic seems to be at work here.

What the law, a Supreme Court Justice or the dictionary states is completely irrelevant in this instance. It ultimately comes down to a much more fundamental disagreement on the core nature of liberty and how society should be ordered around it. That will never be solved by citations to outside sources. It is more driven by people’s day-to-day experiences with the world around them (their use of data on a computer, their ability to hear music as they pass a radio or playing device on the sidewalk, their portable phones with cameras, etc.).

Whether you wish to admit it or not, our concepts of freedom are defined by the technology and limitations of the physical world around us. The digital revolution has arguably been the largest sea-change to that dynamic in the history of the world, and thus it is causing more and more people change and to internalize their core beliefs on the morality of copying/sharing/copyright infringement/however you want to define it. But simply placing the label of “theft” on it won’t make a bit of difference because too many people will inherently understand how it conflicts with the reality of how they live their lives today. They will always instinctively know the difference between hitting the ‘forward’ button on an email with a poem in it or with an MP3 file attached compared to somebody forcibly taking a slice of pizza off of some kid’s plate.

All your citations, laws and posturing with advanced degrees won’t change any of that (thank goodness).

Technotopia, if you’re interested to ‘get this shit’ I recommend reading a bit of Thomas Paine, someone who understood the rights of the matter – before ‘right’ became corrupted to mean a privilege granted by the crown.

I hesitated to point out that Thomas Paine helped draft the 1793 Copyright Act believing that you too must have been aware of it and must therefore also be in possession of some additional info that negated or otherwise explained his involvement. Low and behold I overestimated you. You were just ignorant. Turns out all this time you’ve been espousing a false prophet. Hell, not even a false prophet but an antithetical one! How does that feel?

See Wikipedia’s entry for Paine’s Rights of Man which should make it clear to you that the right to copy existed in man (and still does) despite Queen Anne’s statute of 1709 that annulled it, to leave it, by exclusion, in the hands of a few – privileged copyright holders.

I think you’ve “taken liberties” with this interpretation which isn’t surprising. Taking liberties with history seems to be one of your defining characteristics. In any case, the phrase “natural right” is an oxymoron. Your whole freetard-anarcho-libertarian nonsense religion is logically bankrupt. No one will ever take it seriously. Your website will continue to collect well-deserved cobwebs.

I didn’t ask you to spam your lunatic blog again, I asked you where you derived all your bullshit opinions to begin with. It turns out you derived them from the same place I predicated: your ass.

Try not to trip over that tail tucked between your legs…

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently Director of Legal Policy at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.